Waxman v. Waxman, (2004) 186 O.A.C. 201 (CA)

• Judge: Doherty, Laskin and Goudge, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 30, 2004
• Jurisdiction: Ontario
• Citations: (2004), 186 O.A.C. 201 (CA);2004 CanLII 39040 (NS CA);2004 CanLII 39040 (ON CA);44 BLR (3d) 165;[2004] CarswellOnt 1715;[2004] OJ No 1765 (QL);132 ACWS (3d) 1046;186 OAC 201

Waxman v. Waxman (2004), 186 O.A.C. 201 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. MY.007

Morris Waxman and Morriston Investments Limited (plaintiffs/respondents) v. Chester Waxman, Chester Waxman in trust, Chesterton Investments Limited, Robert Waxman, Gary Waxman, Warren Waxman, I. Waxman & Sons Limited, The Greycliffe Holdings Limited, Robix Financial Corporation Limited, Circuital Canada Inc., RKW Standardbred Associates Inc., RKW Standardbred Management Inc., and Glow Metal Trading Inc. (defendants/appellants)

I. Waxman & Sons Limited and Chester Waxman (plaintiffs by counterclaim) v. Morris Waxman, Michael Waxman, Shirley Waxman, Douglas Waxman, The Waxman Holding Corporation Inc., Morriston Investments Limited, Solid Waste Reclamation Limited, Solid Waste Reclamation Inc. and General Environmental Technologies Corporation (defendants to counterclaim)

Morris Waxman (plaintiff/respondent) v. I. Waxman & Sons Limited (defendants/appellant)

Morris Waxman, Michael Waxman and Solid Waste Reclamation Limited (plaintiffs/respondents) v. Chester Waxman, Robert Waxman, Gary Waxman and I. Waxman & Sons Limited (defendants/appellants)

Chester Waxman, Warren Waxman, Robert Waxman, Gary Waxman, Brenda Halberstadt and I. Waxman & Sons Limited (plaintiffs by counterclaim) v. Morris Waxman, Michael Waxman, Douglas Waxman, Solid Waste Reclamation Limited and The Waxman Holding Corporation Inc. (defendants by counterclaim)

Morris Waxman and Morriston Investments Limited (plaintiffs/respondents) v. Taylor Leibow, Wayne Linton and I. Waxman & Sons Limited (defendants/appellants)

(C38616)

Morris Waxman and Morriston Investments Limited (plaintiffs/respondents) v. Paul Ennis, Q.C. and Ennis & Associates (defendants/appellants)

(C38611)

Morris Waxman and Morriston Investments Limited (plaintiffs/appellants) v. Taylor Leibow, Wayne Linton and I. Waxman & Sons Limited (defendants/respondents)

(C38624)

Indexed As: Waxman et al. v. Waxman et al.

Ontario Court of Appeal

Doherty, Laskin and Goudge, JJ.A.

April 30, 2004.

Summary:

Isaac Waxman came to Canada from Poland in 1911 and established what became a very successful scrap metal and junk collection business, I. Waxman and Sons Ltd. (IWS). His two sons, Morris and Chester, began to work in the business in the 1940s and played a large role in the growth and prosperity of the business throughout the 1950s and 1960s. Isaac Waxman died in 1972. In the years following Isaac Waxman's death, the two sons continued to run the business together, each owning 50% of the shares of IWS and treating the business like a partnership. Chester's and Morris's sons also became involved in the company. In 1983, Morris signed documents transferring his 50% interest in IWS to Chester. Morris later claimed that he did not realize what he had signed. Between 1979 and 1988, the relationship between the family members deteriorated. Five actions ensued revolving around the operations of IWS between 1979 and 1988 and the operation of a company operated by Morris and one of his sons from 1982 onward, called Solid Waste Reclamation Inc. (SWRI). Three of the actions involved claims by Morris against Chester, his sons and IWS. Morris claimed, inter alia, that Chester breached his fiduciary duty to Morris by cheating him out of his 50% interest in IWS, by causing Morris to unwittingly sign lease documentation unfavourable to Morris; after 1983, excluding Morris from his 50% participation in the equity and profits of IWS; and by operating IWS between 1979 and 1988 to the personal advantage of Chester and his sons, and to the exclusion of the legitimate interests of Morris and his sons. Morris also advanced his IWS claims under the oppression provisions of the Ontario Business Corporations Act. Morris also claimed that in 1988, Chester had set out to destroy the business of SWRI by interfering in SWRI's business relations as part of a strategy to impoverish Morris. Morris commenced a fourth action against Ennis, the family's lawyer, alleging negligence and breach of duty respecting the share sale. Morris commenced a fifth action against IWS's accountants, Taylor Leibow, and IWS's comptroller, Linton, relating to the share sale and to the alleged improper diversion of the assets and equity of IWS to Chester and his sons.

The Ontario Supreme Court, in a decision reported [2002] O.T.C. 443, for the most part allowed Morris's claims, except for those against Taylor Leibow, the IWS accountants. The trial judge held that Morris had not sold his shares to Chester in 1983 and that Chester held the shares in trust for Morris from then onward. The trial judge ordered that Chester return the shares, plus account for 50% of profits generated and equity distributed between 1983 and 2002, etc. The trial judge also awarded punitive damages of $350,000 from Chester to IWS. The trial judge also held that Morris could recover, under the oppression provisions of the Ontario Business Corporations Act, his IWS share sale damages, damages arising from improper bonus payments, diversion of profits, etc. The court also allowed Morris's claim against his lawyer, Ennis, holding Ennis liable for damages for breach of fiduciary duty, breach of contract and negligence in relation to the share sale transaction. The action against the IWS accountant, Linton, was also allowed in connection with the share sale, improper bonus payments and the improper diversion of IWS profits to corporate entities controlled by Chester's sons. Morris also succeeded on the claims relating to SWRI, with the trial judge finding that Chester, one of his sons and IWS were liable for damages including punitive damages of $100,000, for inducing another company to breach a contract with SWRI. The damages totalled in the millions of dollars. Chester appealed, challenging almost all of the critical findings of fact made by the trial judge. Chester also raised many legal issues relating to liability, the appropriateness of the nonpecuniary remedies awarded by the trial judge, and her damage assessments. The lawyer, Ennis, and the accountant, Linton also appealed. Morris appealed the dismissal of the claim against the IWS accountants, Taylor Leibow.

The Ontario Court of Appeal substantially dismissed Chester's appeal, holding that there was no basis upon which to interfere with any of the significant findings of fact or liability. The court varied the quantification of damages downward to a relatively minor degree. Morris's appeal respecting the liability of the accountants, Taylor Leibow was dismissed.

Barristers and Solicitors - Topic 1545

Relationship with client - Duty to client - General - Obligation of loyalty - Chester and Morris, brothers, operated a very successful family business originally started by their father - In 1983 Morris signed documents transferring his shares to Chester, but later claimed he did not realize what he had signed - The family relationship deteriorated and Morris claimed, inter alia, that Chester and his sons wrongfully deprived him of his shares - Morris sued the family's lawyer of many years, who had acted for both Chester and Morris, for failing to look out for his interests and in particular for failing to tell him that he was selling his shares - The trial judge found the lawyer liable for breach of fiduciary duty, breach of contract and negligence - The lawyer appealed - The Ontario Court of Appeal dismissed the appeal - The court held that by acting for both sides the lawyer put himself into a hopeless conflict of interest and severely compromised his representation of Morris - Further, once deciding to act he breached even the most basic of obligations to his client, Morris - He showed no commitment to Morris's cause and breached his obligation of candour - See paragraphs 640 to 670.

Barristers and Solicitors - Topic 1548

Relationship with client - Duty to client - General - Fiduciary duty - [See Barristers and Solicitors - Topic 1545 ].

Barristers and Solicitors - Topic 1554

Relationship with client - Duty to client - Duty to inform or advise client - [See Barristers and Solicitors - Topic 1545 ].

Barristers and Solicitors - Topic 1604

Relationship with client - Conflict of interest - Acting for both sides - [See Barristers and Solicitors - Topic 1545 ].

Company Law - Topic 2170.1

Shareholders - Shareholders' rights - Oppressive acts - Remedies - Chester and Morris, brothers, operated a very successful family business originally started by their father - Over time, the relationship deteriorated and litigation ensued - Morris claimed relief under the oppression provisions (s. 248) of the Ontario Business Corporations Act (OBCA) in relation to a sale of shares from Morris to Chester, a lease unfavourable to Morris, certain bonuses and profit diversions by Chester and the wrongful termination of Morris's employment - Morris was successful at trial and oppression remedies were granted against Chester, his sons and the company (the appellants) - The appellants appealed, arguing that Morris could not resort to the oppression remedy where the acts complained of were effected by his own signatures on various corporate documents (OBCA, s. 129(1)) - The Ontario Court of Appeal rejected this argument where Morris's signatures were procured through Chester's breach of fiduciary duty - See paragraphs 517 to 525.

Company Law - Topic 2170.1

Shareholders - Shareholders' rights - Oppressive acts - Remedies - Chester and Morris, brothers, operated a very successful family business originally started by their father - Over time, the relationship deteriorated and litigation ensued - Morris claimed relief under the oppression provisions (s. 248) of the Ontario Business Corporations Act (OBCA) in relation to, inter alia, bonuses that were paid out from the company to Chester and his sons - Morris was successful at trial and oppression remedies were granted against Chester, his sons and the company (the appellants) - The appellants appealed, arguing that using s. 248 to find liability against the sons for receipt of bonuses was wrong in law as none of the sons were shareholders or directors of the company - The Ontario Court of Appeal held that the trial judge did not err in granting oppression remedies against the sons where the payment of the bonuses to them was oppressive of Morris's interests - See paragraphs 527 to 528.

Company Law - Topic 2170.1

Shareholders - Shareholders' rights - Oppressive acts - Remedies - Chester and Morris, brothers, operated a very successful family business originally started by their father - Over time, the relationship deteriorated and litigation ensued - Morris claimed relief under the oppression provisions (s. 248) of the Ontario Business Corporations Act (OBCA) in relation to, inter alia, bonuses that were paid out from the company to Chester and his sons - Morris was successful at trial and oppression remedies were granted against Chester, his sons and the company (the appellants) - The appellants appealed, arguing that s. 248 was inapplicable because much of the conduct occurred before the oppression provisions came into force in July 1983 - The Ontario Court of Appeal declined to rule on whether the legislation should be given full retrospective effect respecting conduct that was fully concluded before the provisions became effective - In this case, the conduct started before the provisions came into effect, but continued thereafter, such that there was an ongoing pattern of oppression for which remedies under s. 248 could be granted - See paragraphs 529 to 533.

Company Law - Topic 2170.1

Shareholders - Shareholders' rights - Oppressive acts - Remedies - Chester and Morris, brothers, operated a very successful family business originally started by their father - Over time, the relationship deteriorated and litigation ensued - Morris claimed relief under the oppression provisions (s. 248) of the Ontario Business Corporations Act (OBCA) in relation to, inter alia, bonuses that were paid out from the company to Chester and his sons - Morris was successful at trial and oppression remedies were granted against Chester, his sons and the company (the appellants) - The appellants appealed, arguing that the trial judge erred in applying the oppression remedy to events that occurred five or more years before the claim was made - The Ontario Court of Appeal rejected this argument, stating that "the trial judge exercised her discretion to apply her broad remedial authority to the pattern of oppressive conduct that started in 1979. In doing so she neither abused her discretion nor ran afoul of any legislative limitation period" - See paragraphs 534 to 526.

Company Law - Topic 2170.1

Shareholders - Shareholders' rights - Oppressive acts - Remedies - Chester and Morris, brothers, operated a very successful family business originally started by their father - Over time, the relationship deteriorated and litigation ensued - Morris claimed relief under the oppression provisions (s. 248) of the Ontario Business Corporations Act (OBCA) in relation to, inter alia, a sale of shares by Morris to Chester - Morris was successful at trial and oppression remedies were granted against Chester, his sons and the company (the appellants) - The appellants appealed, arguing that the trial judge erred in applying s. 248 to order a remedy against the company in connection with the share sale, since the company was not a party to the sale - The Ontario Court of Appeal stated that "... the trial judge was correct to do so. A dispute over a transaction that determined shareholder control of a corporation is one 'in respect of' that corporation as that phrase is used in the opening paragraph of s. 248(2). As such, it clearly engages the court's jurisdiction under this section ..." - See paragraphs 537 to 539.

Company Law - Topic 2170.1

Shareholders - Shareholders' rights - Oppressive acts - Remedies - Chester and Morris, brothers, operated a very successful family business originally started by their father - Over time, the relationship deteriorated and litigation ensued - Morris claimed relief under the oppression provisions (s. 248) of the Ontario Business Corporations Act (OBCA) in relation to, inter alia, bonuses that were paid out from the company to Chester and his sons - Morris was successful at trial and oppression remedies were granted against Chester, his sons and the company (the appellants) - The appellants appealed, arguing that only the company could make a claim under s. 248 in respect of the bonuses since the monies paid out were from the corporation - The appellants claimed that Morris could not use s. 248 since his was a derivative claim only - The Ontario Court of Appeal rejected this argument, holding that Morris clearly qualified as a "complainant" for the purposes of s. 248, as it was he who was personally aggrieved by the distribution of bonus monies which was done at the expense of his interest in the company - That these claims could have been the subject of a derivative action did not prevent them from also constituting a proper cause of action - See paragraphs 525 to 526.

Company Law - Topic 9783

Actions against corporations and directors - Action for oppressive conduct - Persons entitled - [See sixth Company Law - Topic 2170.1 ].

Courts - Topic 583

Judges - Duties - Re reasons for decisions - Chester and Morris, brothers, operated a very successful family business originally started by their father - Over time, the relationship deteriorated and litigation ensued, with Morris claiming that Chester and his sons wrongfully deprived him of his interest in the business - Morris was substantially successful at trial - Chester appealed, arguing that the trial judge's reasons revealed that she began with the desired conclusion and analyzed the evidence with a view to justifying her conclusion - The Ontario Court of Appeal stated that this submission misunderstood the nature and purpose of reasons for judgment - The court stated that "reasons for judgment are written after the trial judge has analyzed the evidence, made the necessary credibility assessments and findings of fact, and reached her conclusions. Reasons for judgment are offered as an explanation for the result arrived at by the trial judge. They explain the result of the reasoning process. They are not exhaustive contemporaneous notes of the process itself ... They cannot be read as a travelogue of the trial judge's voyage of discovery through the evidence ..." - See paragraph 283.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - Chester and Morris, brothers, operated a very successful family business originally started by their father - Over time, the relationship deteriorated and litigation ensued, with Morris claiming that Chester and his sons wrongfully deprived him of his interest in the business - Morris was substantially successful at trial - Chester appealed, arguing that the trial judge's reasons revealed that she began with the desired conclusion and analyzed the evidence with a view to justifying her conclusion - The Ontario Court of Appeal rejected this ground of appeal - The court stated that "Chester and others who testified in support of his version of events had lied, fabricated documents, destroyed other relevant documents, and failed to produce still other relevant documents. It is hardly surprising that her [the trial judge's] reasons paint those individuals in a poor light. Reasons for judgment that reflect and support conclusions and evidentiary assessments already made by the trial judge are not indicative of an improper analysis of the evidence or a preconceived notion of the appropriate result of the case. To the contrary, reasons for judgment that did not accurately reflect those conclusions and assessments would be seriously flawed." - See paragraph 284.

Damages - Topic 1309.1

Exemplary or punitive damages - Breach of confidence or fiduciary duty - Chester and Morris, brothers, operated a very successful family business originally started by their father - Subsequently the relationship deteriorated and litigation ensued, with Morris claiming that Chester and his sons wrongfully deprived him of his shares and wrongfully granted bonuses and diverted company profits to themselves - Morris was substantially successful at trial and remedies were granted for breach of fiduciary duty, for oppression, etc., plus punitive damages - Chester and his sons appealed, arguing that the trial judge erred in ordering punitive damages - The Ontario Court of Appeal rejected this argument holding that the trial judge's conclusion that the conduct justified an award of punitive damages was unassailable - Further, the court noted that where liability was founded on breach of fiduciary duty, an independently actionable wrong was not a precondition of punitive damages - See paragraphs 585 and 586.

Equity - Topic 3615

Fiduciary or confidential relationships - General principles - Spousal or family relationships (incl. closely held companies) - Chester and Morris, brothers, operated a very successful family business originally started by their father - In 1983 Morris signed documents transferring his shares to Chester, but later claimed he did not realize what he had signed - Subsequently the relationship deteriorated and litigation ensued, with Morris claiming that Chester and his sons wrongfully deprived him of his shares and wrongfully granted bonuses and diverted company profits to themselves - Morris claimed that he trusted Chester to make the business decisions and habitually signed whatever documents Chester required for business purposes - Morris was substantially successful at trial - The trial judge found that Chester had breached a fiduciary duty to Morris with respect to the share sale and with the profit diversions - Chester appealed, arguing that the fiduciary duty principle could not be used where a person signed documents but claimed that he did not know the nature and character of the documents he was signing - The Ontario Court of Appeal rejected this argument, holding that it was entirely appropriate for the trial judge to apply the fiduciary principle despite Morris's signatures, given that Chester had Morris sign knowing that he had no understanding of what was really going on - See paragraphs 489 to 509.

Equity - Topic 3615

Fiduciary or confidential relationships - General principles - Spousal or family relationships (incl. closely held companies) - Chester and Morris, brothers, operated a very successful family business originally started by their father - In 1983 Morris signed documents transferring his shares to Chester, but was to remain involved in the company - Subsequently the relationship deteriorated and litigation ensued, with Morris claiming that Chester and his sons wrongfully deprived him of his company shares - Morris claimed that he trusted Chester to make the business decisions and habitually signed whatever documents Chester required for business purposes - Morris was substantially successful at trial - The trial judge found that Chester had breached a fiduciary duty to his brother in connection with a share sale - Chester appealed, arguing that no fiduciary duty arose on the facts as found because they involved no more than the sale of shares by one shareholder to another and because Chester gave no express undertaking to act in Morris's best interest in connection with that transaction - The Ontario Court of Appeal rejected this ground of appeal - See paragraphs 510 to 512.

Equity - Topic 3615

Fiduciary or confidential relationships - General principles - Spousal or family relationships (incl. closely held companies) - Chester and Morris, brothers, operated a very successful family business originally started by their father - In 1983 Morris signed documents transferring his shares to Chester, but later claimed that he did not realize what he had signed - Subsequently the relationship deteriorated and litigation ensued, with Morris claiming that Chester and his sons wrongfully deprived him of his company shares - Morris claimed that he trusted Chester to make the business decisions and habitually signed whatever documents Chester required for business purposes - Morris was substantially successful at trial - The trial judge found that Chester had breached a fiduciary duty to his brother in connection with a share sale - Chester appealed, arguing that he did not breach his fiduciary duty in connection with the share sale, should one be found to exist, because he did not withhold any material facts about the condition of the company or its value from Morris - The Ontario Court of Appeal rejected this argument - The court noted that the trial judge found that Morris was unaware of much material information relevant to the value of the company prior to the sale of shares and, even more importantly, the judge found that Chester did not explain to Morris that he was being asked to sign share sale documents turning over his interest in the company to Chester - Chester had Morris sign knowing that Morris trusted him implicitly and that Morris had no idea what was really going on - See paragraphs 513 to 515.

Equity - Topic 3652

Fiduciary or confidential relationships - Breach of fiduciary relationship - Liability of third parties or accessories (incl. doctrines of knowing receipt or assistance) - Chester and Morris, brothers, operated a very successful family business originally started by their father - Over time, the relationship deteriorated and litigation ensued - The trial judge granted Morris remedies under s. 248 of the Ontario Business Corporations Act (OBCA) - The trial judge also employed the doctrines of knowing receipt and knowing assistance in dealing with claims by Morris that Chester's sons had wrongfully received bonuses and in relation to Morris's claim that profits were wrongfully diverted from the company to one of Chester's son's companies - Chester and his sons appealed, arguing that the trial judge erred in applying the doctrines of knowing receipt and knowing assistance where there was only a breach of fiduciary - Rather, they argued that the doctrines could only apply where the monies wrongly paid out were trust monies and here the bonuses were simply corporate funds paid out pursuant to signed corporate resolutions - The Ontario Court of Appeal rejected this argument, holding that both doctrines were available in the context of a breach of fiduciary duty and not simply where trust monies were involved - See paragraphs 540 to 556.

Equity - Topic 3653.1

Fiduciary or confidential relationships - Breach of fiduciary relationship - By accountant or auditor - Chester and Morris, brothers, operated a very successful family business (IWS) originally started by their father - Subsequently the relationship deteriorated and Morris claimed that Chester and his sons wrongfully deprived him of his interests in IWS - Morris sued IWS's long-time auditor for negligence and breach of fiduciary duty for failing to warn him that certain related party transactions between IWS and a company owned by Chester's sons were not at fair market value and by failing to tell him that IWS had paid out excessive bonuses to Chester and his sons to Morris's detriment - The trial judge dismissed the claim, holding that although the auditor owed Morris a prima facie duty of care, that prima facie duty was ousted by policy concerns about indeterminate liability - She also held that the auditor did not owe a fiduciary duty to Morris - Morris appealed, arguing that the trial judge erred in finding that the auditor did not have a duty to warn Morris about the related party transactions and the bonuses - The Ontario Court of Appeal dismissed Morris's appeal - See paragraphs 671 to 734.

Practice - Topic 6032

Judgments and orders - Reasons for judgment after trial or application - Interpretation of - [See both Courts - Topic 583 ].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - Chester and Morris, brothers, operated a very successful family business originally started by their father - Over time, the relationship deteriorated and litigation ensued, with Morris claiming that Chester and his sons wrongfully deprived him of his interest in the business - After a lengthy and factually complex trial, Morris was substantially successful - Chester appealed, challenging the trial judge's fact findings - The Ontario Court of Appeal found that there was no basis to interfere with any of the significant findings of fact where she made no palpable and overriding error in her findings - See paragraphs 289 to 487.

Professional Occupations - Topic 1463

Accountants - Negligence - Duty of care - [See Equity - Topic 3653.1 ].

Torts - Topic 5208

Interference with economic relations - Contracts - Inducing or procuring breach of contract - Chester and Morris, brothers, operated a very successful family business (IWS) originally started by their father - Over time, the relationship deteriorated and Chester and his sons allegedly deprived Morris and his son of their interests in the family business - Morris and his son operated a business, SWRI, and alleged that after they were shoved out of the family business, Chester set out to destroy the business of SWRI by inducing another company (Philip) to terminate a six year business relationship with SWRI - SWRI sued for damages for inducing breach of contract - The trial judge found Chester, one of his sons and IWS (the appellants) liable for inducing a breach of contract - The appellants appealed - The Ontario Court of Appeal rejected this ground of appeal, holding that SWRI had proven the five elements necessary to succeed in its tort action for inducing breach of contract - See paragraphs 593 to 606.

Cases Noticed:

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 162 C.C.C.(3d) 298, refd to. [para. 283].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 283].

H.L. v. Canada (Attorney General) et al. (2002), 227 Sask.R. 165; 287 W.A.C. 165 (C.A.), refd to. [para. 289].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 291].

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 297].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [para. 301].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 301].

Keljanovic Estate, Re (2000), 132 O.A.C. 19; 186 D.L.R.(4th) 481 (C.A.), leave to appeal refused (2000), 265 N.R. 395; 143 O.A.C. 398 (S.C.C.), refd to. [para. 305].

Keljanovic Estate v. Sanseverino - see Keljanovic Estate, Re.

Equity Waste Management of Canada et al. v. Halton Hills (Town) (1997), 103 O.A.C. 324; 35 O.R.(3d) 321 (C.A.), refd to. [para. 305].

McKinley v. BC Tel et al., [2001] 2 S.C.R. 161; 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161, refd to. [para. 305, footnote 1].

Marshall v. Watson Wyatt & Co. (2002), 155 O.A.C. 103; 57 O.R.(3d) 813 (C.A.), refd to. [para. 305, footnote 1].

Rodaro et al. v. Royal Bank of Canada et al. (2002), 157 O.A.C. 203; 59 O.R.(3d) 74 (C.A.), refd to. [para. 306].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1; 162 C.C.C.(3d) 324, refd to. [para. 307].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 312].

R. v. Hibbert (K.R.), [2002] 2 S.C.R. 445; 287 N.R. 111; 165 B.C.A.C. 161; 270 W.A.C. 161; 163 C.C.C.(3d) 129, refd to. [para. 351].

R. v. O'Connor (P.) (2002), 166 O.A.C. 202; 170 C.C.C.(3d) 365 (C.A.), refd to. [para. 351].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402, refd to. [para. 458].

Antipas v. Coroneos (1988), 26 C.P.C.(2d) 63 (Ont. H.C.), refd to. [para. 478].

Marvco Color Research Ltd. v. Harris and Harris, [1982] 2 S.C.R. 774; 45 N.R. 302, refd to. [para. 497].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 504].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 506].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42, refd to. [para. 506].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 506].

McInerney v. MacDonald, [1992] 2 S.C.R. 138; 137 N.R. 35; 126 N.B.R.(2d) 271; 317 A.P.R. 271, refd to. [para. 506].

Tongue et al. v. Vencap Equities Alberta Ltd. et al. (1994), 148 A.R. 321 (Q.B.), affd. (1996), 184 A.R. 368; 122 W.A.C. 368 (C.A.), refd to. [para. 511].

Dusik v. Newton (1985), 62 B.C.L.R. 1 (C.A.), refd to. [para. 511].

Ferguson v. IMAX Systems Corp. (1983), 43 O.R.(2d) 128 (C.A.), leave to appeal refused (1983), 52 N.R. 317; 2 O.A.C. 158 (S.C.C.), refd to. [para. 523].

Jabalee v. Abalmark Inc., [1996] O.J. No. 2609 (C.A.), refd to. [para. 526].

Mason v. Intercity Properties Ltd. (1986), 32 A.C.W.S.(2d) 366 (Ont. Div. Ct.), varied (1987), 22 O.A.C. 161; 59 O.R.(2d) 631 (C.A.), refd to. [para. 531].

Jaska v. Jaska (1996), 141 D.L.R.(4th) 385 (Man. C.A.), refd to. [para. 535].

GATX Corp. et al. v. Hawker Siddeley Canada Inc. et al. (1996), 1 O.T.C. 322; 27 B.L.R.(2d) 251 (Gen. Div.), refd to. [para. 537].

Gold v. Rosenberg et al. (1995), 86 O.A.C. 116; 129 D.L.R.(4th) 152 (C.A.), affd. [1997] 3 S.C.R. 767; 219 N.R. 93; 104 O.A.C. 1, refd to. [para. 547].

MacMillan Bloedel Ltd. v. Binstead (1983), 22 B.L.R. 255 (B.C.S.C.), refd to. [para. 548].

Soulos v. Korkontzilas et al., [1997] 2 S.C.R. 217; 212 N.R. 1; 100 O.A.C. 241, refd to. [para. 548].

McBride Metal Fabricating Corp. v. H & W Sales Co. (2002), 158 O.A.C. 214; 59 O.R.(3d) 97 (C.A.), refd to. [para. 578].

Sidaplex-Plastic Suppliers Inc. v. Elta Group Inc. et al. (1998), 111 O.A.C. 106; 40 O.R.(3d) 563 (C.A.), refd to. [para. 578].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 586].

Posluns v. Toronto Stock Exchange and Gardiner, [1964] 2 O.R. 547 (H.C.), affd. [1966] 1 O.R. 285 (C.A.), affd. [1968] S.C.R. 330, refd to. [para. 595].

Teddy Bear Valley Mines Ltd., Re, [1993] O.J. No. 1588 (Gen. Div.), refd to. [para. 625].

Canadian Aero Service Ltd. v. O'Malley, [1974] S.C.R. 592, refd to. [para. 628].

R. v. Neil (D.L.), [2002] 3 S.C.R. 631; 294 N.R. 201; 317 A.R. 73; 284 W.A.C. 73, refd to. [para. 646].

Davey v. Woolley, Hames, Dale & Dingwall (1982), 35 O.R.(2d) 599 (C.A.), leave to appeal refused (1982), 44 N.R. 89; 37 O.R.(2d) 499 (S.C.C.), refd to. [para. 646].

Clarence Construction Ltd. v. Lavallee (1980), 111 D.L.R.(3d) 582 (B.C.S.C.), affd. (1981), 132 D.L.R.(3d) 153 (B.C.C.A.), refd to. [para. 648].

Canson Enterprises Ltd. et al. v. Boughton & Co. et al., [1991] 3 S.C.R. 534; 131 N.R. 321; 6 B.C.A.C. 1; 13 W.A.C. 1, refd to. [para. 657].

Martin v. Goldfarb et al. (1998), 112 O.A.C. 138; 41 O.R.(3d) 161 (C.A.), refd to. [para. 661].

Hunt v. TD Securities Inc. et al. (2003), 175 O.A.C. 19; 66 O.R.(3d) 481 (C.A.), refd to. [para. 662].

McKitterick et al. v. Duco, Geist and Chodos et al. (1994), 76 O.A.C. 310 (C.A.), refd to. [para. 665].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, refd to. [para. 672].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 688].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 689].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268, refd to. [para. 691].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Ultramares Corp. v. Touche (1931), 174 N.E. 441 (N.Y.C.A.), refd to. [para. 696].

Brant Investments Ltd. et al. v. KeepRite Inc. et al. (1991), 45 O.A.C. 320; 80 D.L.R.(4th) 161 (C.A.), refd to. [para. 720].

Roman Corp. v. Peat Marwick Thorne (1993), 12 B.L.R.(2d) 10 (Ont. Gen. Div.), refd to. [para. 720].

Statutes Noticed:

Business Corporations Act, R.S.O. 1990, c. B-16, sect. 128 [para. 519]; sect. 129(1) [para. 521].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), pp. 514, 515 [para. 532].

Ellis, Mark V., Fiduciary Duties in Canada (1988), pp. 20 to 24 [para. 586].

Perell, Paul M., Intermeddlers or Strangers to the Breach of Trust or Fiduciary Duty (1999), 21 Adv. Q. 94, generally [para. 548].

Counsel:

Alan Lenczner, Q.C., and Lorne Silver, for Chester Waxman et al. and Wayne Linton;

Barbara Murchie, for Paul Ennis and Ennis & Associates (C38611) and Paul Ennis;

Frank Bowman, Chris Hluchan and Sandy M. DiMartino, for Taylor Leibow (C38616, C38611 and C38624);

Robert S. Harrison and Richard B. Swan, for Morris Waxman et al. (C38611 and C38616).

These appeals were heard on April 22-25, 28-30 and May 1, 2, 5-8, 2003, before Doherty, Laskin and Goudge, JJ.A., of the Ontario Court of Appeal. The following decision by the court was released on April 30, 2004.